This is not a case of an explosion in the number of asbestos-related illnesses, but rather an explosion in the number of asbestos-related lawsuits brought by claimants who are not sick. Indeed, research shows that up to 90 percent of asbestos claims are filed on behalf of people who are not sick and may never become sick from exposure.
Unbridled litigation hurts business, Ohio
The cost of uncontrolled asbestos litigation is enormous, and all of us pay the price.
* More than 70 companies across the nation have declared bankruptcy.
* As many as 60,000 jobs nationwide have been lost.
* Pension plans have suffered, and so has the state's economy.
* The compensation pool is shrinking for people who are truly sick, with some receiving just pennies on the dollar.
* The cost of the U.S. tort system grew 14.3 percent in 2001, according to a Tillinghast-Towers Perrin Study. Asbestos-related lawsuits were responsible for 40 percent of that increase.
* The RAND Institute for Civil Justice estimates that the overall projected business cost of asbestos litigation could total $210 billion or more.
While early litigation targeted asbestos manufacturers, today's lawsuits take aim at industries of all types -- car manufacturers, appliance makers, printing plants, mineral companies, rubber manufacturers and more. Businesses with only a passing acquaintance with asbestos are targets, and so are building owners.
Silica litigation appears to be the next frontier in toxic tort litigation, posing a future litigation crisis akin to the asbestos crisis if reforms are not made now.
New laws attack out-of-control litigation
While Congress has wrestled with this issue for decades, one state -- Ohio --- has taken action to protect the rights of people who are truly ill and protect jobs in the process.
In June, Gov. Bob Taft signed into law measures designed to address the flood of asbestos-related lawsuits filed by plaintiffs who are neither sick nor injured. The governor also signed into law a measure to stem the newly developing crisis involving baseless silica claims.
The General Assembly acted out of necessity: More than 40,000 asbestos claims are pending in Ohio alone. Already, approximately 1,000 silica cases have been filed in the state, with thousands more expected.
Ohio's laws can serve as models for other states wrestling with these issues. The measures dramatically reform the process for bringing and pursuing lawsuits. The results will be speedier resolution for sick claimants, protection of resources for people who may become sick in the future and critical support for Ohio businesses drowning in a sea of endless litigation.
Under the Ohio asbestos legislation, claimants must meet minimum medical criteria to bring an asbestos claim. The criteria will be applied to cases currently pending in Ohio courts, as well as all new filings.
The law also sets standards for doctors providing the initial diagnoses, requiring that they have a doctor/patient relationship with the claimants and that they spend less than 25 percent of their time in medical/legal consulting. The silica litigation establishes similar medical criteria that are effective only going forward.
In both cases, the laws protect the rights of healthy people to file claims should they later become sick.
Reforms can help build stronger state
Ohio's asbestos and silica legislation is good news for Ohio businesses today, and even better news for Ohio businesses tomorrow. States that have adopted tort reforms have experienced employment growth of almost 9 percent, productivity growth of 3.5 percent and total output growth of 12 percent for each liability-reducing reform, according to the National Bureau of Economic Research. Simply put, tort reform makes business sense.
Getting asbestos and silica litigation under control in Ohio is good first step, both for the state and for the nation. Nina I. Webb-Lawton (email@example.com) is a partner in the Columbus office of Vorys, Sater, Seymour and Pease LLP, one of the nation's leading asbestos defense firms. Reach her at (614) 464-8389.